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New Jersey Division of Youth and Family Services v. D.C.G. and C.R.S

July 12, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.C.G. AND C.R.S., DEFENDANTS-APPELLANTS. IN THE MATTER OF THE GUARDIANSHIP OF K.L.S. AND D.L.S., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FG-08-13-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2011

Before Judges Grall and C.L. Miniman.

Defendants D.C.G. (Father) and C.R.S. (Mother) appeal from a judgment terminating their respective parental rights to K.L.S. and D.L.S. We have consolidated their separate appeals.

Defendants challenge the adequacy of the evidence presented by the Division of Youth and Family Services (DYFS) to prove that termination of parental rights is in the best interests of their children. See N.J.S.A. 30:4C-15.1a. In addition, they claim denial of their right to representation by court-appointed counsel at proceedings involving approval of permanency plans prior and subsequent to the filing of the guardianship complaint. See N.J.S.A. 30:4C-11.3, -11.4, -15, -61.2.*fn1 Father also contends that the assistance he received after counsel was appointed, both prior to and at trial, was ineffective. We reject the claims based on denial and ineffective assistance of counsel, and we affirm the judgments of termination because the decision is supported by adequate credible evidence in the record.

Mother and Father have consistently left the care and nurturing of these children to others. Mother has four older children, all now emancipated, who were reared in similar fashion.

When K.L.S. was born in 1996, DYFS had custody of her half-brother and was providing Mother services with the goal of returning him to her care. The boy was returned to Mother's care in June 1997, but by December of that year, DYFS had assumed responsibility for him, K.L.S. and another of her half-brothers after finding K.L.S.'s brothers alone in a filthy home that had no heat or electricity. The boys did not know where their mother was or when she would return. In 1998, when D.L.S. was born, the DYFS litigation that followed the 1997 removal of K.L.S. and the boys was still pending, and the complaint was amended to include D.L.S. At that time, the four children were in DYFS' custody and placed with various relatives.

In March 1999, Mother, represented by counsel, consented to entry of an order in a non-dissolution case transferring custody of both K.L.S. and D.L.S. to A.F., who is Father's aunt. The order preserved Mother's right to visit and contact the children "upon notice to" A.F. The DYFS litigation was dismissed in May 1999.

Between March 1999 and July 2005, K.L.S. and D.L.S. remained in A.F.'s custody. But by July 2005, A.F. was seventy-six years old and no longer felt able to care for them. Consequently, DYFS removed the children from A.F.'s home to protect them against ongoing risk to their safety and health as authorized by N.J.S.A. 9:6-8.29 and N.J.S.A. 30:4C-12.

DYFS commenced this litigation involving K.L.S. and D.L.S. on July 8, 2005, two days after DYFS removed the children from A.F.'s home. In that complaint and order to show cause, DYFS alleged that Father and Mother failed to provide adequate shelter and support, their whereabouts were unknown and that A.F. was unable to provide necessary care. The judge determined that DYFS' removal of the children was appropriate for the reasons alleged and entered a temporary order placing the children in DYFS' care and custody. That order directed the parents and A.F. to appear on September 26, 2005.

Unknown to DYFS, Father was incarcerated on September 26, 2005 and, therefore, did not appear for the hearing. According to the parties, Mother appeared. Because a transcript of the proceeding could not be produced and Mother has not submitted a certification or affidavit indicating what occurred, it is not clear whether Mother asserted her willingness or ability to care for the children whose custody she had transferred to A.F. years earlier. It is clear, however, that A.F.'s adult daughter, C.O., was willing to assume responsibility for their care. The order entered on September 26 provides for the case to proceed under Title 30 as one for "custody and services." The order also authorizes DYFS to place the children with C.O. upon finding her to be a qualified caregiver. It did not require DYFS to provide services to either parent or to take steps to locate and serve Father. Consistent with the order, DYFS placed the children with C.O. prior to the next hearing.

Neither parent appeared for that hearing, which was held on November 7, 2005. At the hearing, the judge approved continued placement of the children with C.O.

A compliance review hearing was held on March 6, 2006.

C.O. appeared, but neither parent did. At that point, the children had been with C.O. for six months. Although C.O. did not give sworn testimony, she told the judge that Father had been to her apartment and she had seen Mother "around." C.O. also said she told the parents to contact DYFS to set up visitation. DYFS reported that neither Mother nor Father had contacted it since July 26, 2005 and told the judge it planned to pursue permanent placement of the children with C.O. through the Kinship Legal Guardianship program, N.J.S.A. 30:4C-84 to -90 and N.J.S.A. 3B:12A-1 to -7. The March 6 order directs DYFS to prepare petitions for a kinship legal guardianship placement with C.O. and precludes visitation for the parents until further order of the court.

Father, who had been serving a term of imprisonment and was anticipating release to a halfway house in the near future, first appeared in this matter on August 7, 2006. It had been more than one year since the children were removed from the custody of his aunt, A.F., and seven years since A.F. had been awarded custody of his children. The subject of the August 7 hearing was entry of the first permanency order in this case. Father did not have an attorney, and there was no mention of his right to apply for appointed counsel. The judge asked Father if he understood and agreed with the plan to place the children with C.O., and he said yes. The judge did not otherwise address Father that day.

Mother did not appear for the hearing on the permanency order and was not represented. The caseworker reported, however, that she had spoken with Mother the night before and that Mother knew the children were with C.O.

At the conclusion of the August 7 hearing, the judge entered a permanency order incorporating a plan for C.O. to serve as the children's kinship legal guardian and noting, with reference to services provided in the earlier litigation, that DYFS had made reasonable efforts to ...


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